Asamoah (Migration)

[2024] AATA 3649

Asamoah (Migration) [2024] AATA 3649 (1 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Kwame  Asamoah

VISA APPLICANT:  Mr Kelvin Annor Mensah

CASE NUMBER:  2316871

HOME AFFAIRS REFERENCE(S):          BCC2021/1778735

MEMBER:Edward Howard

DATE:1 October 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 01 October 2024 at 3:43pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – customary adoption – formal adoption available in Ghana – concern about the visa applicant’s welfare and behaviour – lengthy delay after adoption – significantly closer relationship – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.211, 101.221; r 1.04

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 August 2023 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 10 September 2021. The application was for a Child (Migrant) (Class AH) visa contained in Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

4. The delegate refused to grant the visa on the basis that cl 101.211(1)(c)(ii) was not satisfied.

5. The review applicant appeared before the Tribunal on 12 September 2024 to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND

7. The review applicant is Mr Kwame Asamoah, aged 66 years, an Australian permanent resident and the visa applicant is Mr Kelvin Annor Mensah, aged 24 years, a citizen of Ghana. The visa applicant was born on 5 January 2000 Ghana, he is the son of the review applicant’s cousin.

8. It is claimed that the visa applicant suffered violence and neglect from his mother due to her mental illness. During a visit to Ghana in 2003, the review applicant claims that he became aware of the situation between the visa applicant and his mother and that the child had been placed with his grandmother as a result of harm suffered by him.

9. The review applicant claims that the grandmother was elderly and would not be able to care for the visa applicant. As a result, he discussed the issue with other members of the family and it was decided that another relative, Esther, would take the visa applicant to live with her and in return the review applicant would support the visa applicant financially and also support Esther with her home-based, small business.

10. As a result, the visa applicant was placed in the care of Esther in 2003, with the assistance and support of the review applicant. The review applicant claims that the visa applicant was ostracised by other family and community members because of his mother.

11. The evidence of the review applicant is that over a period of time he had been communicating with family members in Ghana and had been attempting to have other family members assist Esther, both financially and in providing care for the visa applicant but to no avail.

12. He formed the view that it would be in the best interests of the visa applicant if he were to leave Ghana. In order to do so, the review applicant was required to go through an adoption process for the visa applicant.

13. As a result of this, the review applicant adopted the visa applicant pursuant to a customary adoption process in Ghana finalised on 21 November 2014.

14. On 10 September 2021 an application was lodged for a Child (Subclass 101) visa on the basis that the visa applicant was the adopted child of the review applicant. This application was refused by the delegate on 14 August 2023. On 20 October 2023, an application for review of this decision was lodged with the Administrative Appeals Tribunal (the Tribunal).

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. Clause 101.211 of Schedule 2 to the regulations refers to the criteria to be satisfied at the time of application. The criteria to be satisfied at time of decision are contained in cl 101.221, namely, that pursuant to cl 101.221(2)(a)(i), the applicant continues to satisfy the criteria in cl 101.211.

16. Relevantly to this matter, cl 101.211(1)(c)(ii) requires that the applicant was adopted overseas by a person, who at the time of adoption:

    “was not an Australian citizen, holder of a permanent visa or eligible New Zealand   citizen but later became an Australian citizen, holder of a permanent visa or eligible New Zealand citizen”.

17. In relation to the issue of the status of the review applicant, the evidence confirms that he was not an Australian citizen, holder of a permanent visa or eligible New Zealand citizen at the time of adoption but was subsequently granted a Permanent Subclass 189 visa on 29 February 2020.

18. In relation to the issue of adoption as referred to in cl 101.211, regulation 1.04 of the Regulations states as follows:

    Adoption

    (1)  A person (in this regulation called the adoptee ) is taken to have been adopted by a person (in this regulation called the adopter ) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:

    (a)  formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or

    (b)  formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or

    (c)  other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.

    (2)  For the purposes of paragraph (1)(c), arrangements are taken to be in the nature of adoption if:

    (a)  the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and

    (b)  the child - parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and

    (c)  the Minister is satisfied that:

    (i)  formal adoption of the kind referred to in paragraph (1)(b):

    (A)  was not available under the law of the place where the arrangements were made; or

    (B)  was not reasonably practicable in the circumstances; and

    (ii)  the arrangements have not been contrived to circumvent Australian migration requirements.

19. The decision of the delegate was to refuse the application on the grounds that the review applicant had failed to satisfy regulation 1.04(2)(c)(i), namely, that formal adoption of the kind referred to in the regulation was either not available under the law of the place where the arrangements were made, or was not reasonably practicable in the circumstances.

20. During the visa application process, the review applicant was asked to explain why the formal adoption process in Ghana was not followed. The review applicant submitted a statement on 1 June 2023, stating as follows:

    “A lawyer and a social welfare officer I consulted in Ghana suggested that customary adoption was the most appropriate. I did not know of any other means apart from the customary adoption, and I learned about formal adoption later after the customary one was completed. The formal adoption is costly, it takes more than three years to complete and it would be convenient (sic) for me because I would be required to be present in Ghana on many occasions.”

21. At the Hearing of this matter, the review applicant was asked why he did not proceed with formal adoption. His response was that as the customary process required a court order at its conclusion, he was under the impression that it was a type of formal process.

22. The review applicant then stated that the lawyer in Ghana told him both methods were accepted by the courts.

23. The Tribunal asked the review applicant what the reason was for following the customary process. He answered that he followed the advice of the social worker and lawyer and that it was the most convenient for him.

24. The Tribunal then put to the review applicant that despite his statement referred to in paragraph 20 above, he was advised of both methods of adoption including the differences in expense, time and the requirement to be in Ghana and that he made a decision to go with the customary adoption process as it was cheaper, quicker and took less time in Ghana. In response to this assertion the review applicant stated:

    “I agree with that.”

25. Hence, despite his earlier evidence, at the Hearing the review applicant conceded that he was aware of both processes and chose not to pursue the formal adoption process.

26. The review applicant provided post Hearing submissions in relation to a number of issues including the delay in applying for the visa and why he had previously denied knowledge of formal adoption being available in Ghana.

27. In the submissions, the review applicant stated as follows:

    “Why I denied knowledge of formal adoption in Ghana?

    On 5 May 2023, the Delegate asked me to explain why the formal adoption process in Ghana was not carried out. I responded that I did not know about formal adoption until the customary adoption was completed.

    I humbly submit that my response to the Delegate’s query was incorrect. I was confused about the customary adoption being formal adoption.

    My confusion was borne out by the explanation below:

    The lawyer and the social welfare officer I consulted gave me the available options, and I understood that Ghana's formal adoption process was in two streams – either through customary adoption or inter-country adoption.

    The difference between the two streams is how the child to be adopted is sourced. In the customary adoption stream, the child is a relative of the adopter. In the inter-country adoption stream, the child is usually sourced from an orphanage or any other means. The rest of the processes are similar - through the Department of Social Welfare and the courts.

    The Department of Social Welfare does security checks on the adopters after the child is found in both streams. They do due diligence regarding the safety and compatibility of the child and the adopter by paying home visits and interviewing everyone involved. The Department approves the adoption if it is satisfied that all relevant requirements are met.

    In both streams, the adopters engage the services of lawyers to represent them in court to seek the granting of the adoption orders. I found it difficult to understand why customary adoption is less formal than inter-country adoption, even though the processes are similar, and it is the court that grants the orders.

    …..

    Similarly, I understand the customary adoption order granted by the court in Ghana regarding the visa applicant to be a formal adoption as defined in regulation 1.04 because customary adoption is one of the streams of formal adoption in Ghana.

    I was of the view that, the customary adoption order granted in respect of Kelvin Annor Mensah on 21 November 2014, was a formal adoption because all the legal processes required by the Ghanaian government were met.

    This is why I responded that I did not know about formal adoption until the customary adoption was completed. I was confused, and I sincerely apologise for the incorrect response.”

28. The Tribunal has formed the view that these recent submissions are not only in direct contrast to the response given to the department but also entirely inconsistent with the oral evidence given by the review applicant at the Hearing of this matter.

29. At no time previously has the review applicant referred to “inter-country adoption”, nor any reference to how a child is “sourced” for adoption. The Tribunal has formed the view that this information was likely obtained by the review applicant post-Hearing and/or provided as a way of explaining the inconsistencies in his evidence.

30. The recent submissions also state his view that the adoption order granted by the court in Ghana was a formal adoption and falls within regulation 1.04, as in his words, “customary adoption is one of the streams of formal adoption in Ghana”. The review applicant has provided no evidence in support of this assertion.

31. In paragraphs 21-25 above, the review applicant’s evidence is set out clearly, to the effect he conceded that his lawyer had told him of two methods of adoption, formal and traditional. Further, he agreed that he had chosen the customary adoption process over the formal process as it was cheaper, quicker and would take less time in Ghana.

32. Hence, the review applicant was provided with alternatives and made a choice based on personal convenience.

33. The Tribunal asked the review applicant why he decided to seek adoption for the visa applicant.

34. The review applicant responded that in 2014 he had been in communication with a number of other family members, trying to get them to help Esther and the visa applicant. He stated that this included both financial help and care. However no other family members were prepared to assist.

35. The review applicant stated that he had a conversation with Esther in 2014 and that she expressed concern that the visa applicant was “going out with boys and staying out late”. The review applicant’s evidence was that he decided at that point that he would try and find a way for the visa applicant to leave Ghana.

36. In his statement in 2023, the review applicant referred to the visa applicant being stigmatised within the community about his mother’s mental illness and doubts about his paternity. He gave an example of his concern about the visa applicant’s welfare, describing an incident in 2012 when the visa applicant was involved in a fight with a group of boys causing an injury to his right eye which he continues to suffer from today.

37. The Tribunal raised with the review applicant the lengthy delay between the adoption order in November 2014 and the visa application in September 2021, a period of almost 7 years. The review applicant was asked why such a long period of time lapsed before the visa application was made.

38. The review applicant’s answer was that he discussed the matter with his wife and her advice to him was to let the visa applicant “grow a little more” and that this would allow him to “be more mature before coming here”.

39. He further explained that in 2014, there had been troubles in Perth with young African males and that he and his wife were concerned that the visa applicant may get into trouble if you came to Australia. The review applicant provided the Tribunal with various pieces of evidence concerning the problems with African youth crime in Perth since about 2012.

40. The Tribunal reminded the review applicant of his earlier evidence and the conversation with Esther that the visa applicant was “going out with boys and staying out late” and that he had said that this was the reason he decided to help the visa applicant leave Ghana.

41. The review applicant responded that after the adoption process he discussed the matter with his wife and decided it wasn’t the right time. He stated that he changed his mind and did not consider it the right time to apply for a visa.

42. The review applicant then went on to describe how he had provided the visa applicant with a mobile phone. He said that he talked with Esther about taking the phone from the visa applicant, which she did. The review applicant said that he had a conversation with Esther and said, “if he continues to go out and come home at night I will just give him back to the family”. He then stated that the visa applicant’s behaviour settled after that time.

43. The Tribunal again put to the review applicant that his evidence was that he wanted to help the visa applicant leave Ghana because, in part, he was concerned with his behaviour and his welfare. The review applicant then changed his evidence and said that Esther had not said anything bad about the visa applicant just that he “went out and played soccer and came home late”.

44. The Tribunal put to the review applicant that it would have been in the best interests of the visa applicant if he was in Australia under the review applicant’s care rather than living in Ghana where he had no direct control over the visa applicant. He responded that children Australia under the care of their parents were still getting in trouble. He then again stated that Esther had not said that the visa applicant had done anything wrong.

45. The Tribunal reminded the review applicant that he had given evidence of his concern about the visa applicant’s welfare and behaviour and the lack of assistance for Esther to care for him, that he had decided at this time to try to assist the visa applicant to leave Ghana, that as a result he had selected the customary adoption process and went through the elements of that process, received an adoption order and then waited almost seven (7) years almost to apply for the visa. The Tribunal then asked the review applicant again why was there such a delay.

46. The review applicant again referred to problems with young African males and in particular young Sudanese men, in Perth, and that it was best for the visa applicant to stay in Ghana and mature more before coming to Australia. In particular, he referred to young African males being involved in street fights.

47. The review applicant then stated that it was:

    “actually about his safety in Australia and also my safety and also my happiness because if he’d come earlier, I wouldn’t know what would have happened”.

48. The Tribunal finds that the evidence given by the review applicant to explain the delay of almost 7 years in making the visa application, to be contrived, evasive and unhelpful. The Tribunal has formed the view that the 7 year delay suggests a lack of genuine concern for the welfare and well-being of the visa applicant. The Tribunal finds the review applicant to not be a truthful or credible witness in relation to this matter.

49. The review applicant initially gave evidence of a conversation with Esther where she expressed concern as to the behaviour of the visa applicant and the impact this discussion had on the review applicant’s desire to help the visa applicant leave Ghana. When pressed by the Tribunal as to why he then waited so long to make an application for a visa, the review applicant changed his evidence to give the impression that Esther was not very concerned and that nothing bad was occurring in the behaviour of the visa applicant.

50. It is also necessary for the Tribunal to consider reg 1.04(2)(b) namely, that “the child-parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements”.

51. The Tribunal notes that the review applicant waited almost 7 years from being granted customary adoption in 2014 to the lodging of the visa application in 2021. The Tribunal has formed the view that the reasons given by the review applicant to delay the application process for almost 7 years lack substance and foundation.

52. Having given evidence that Esther was concerned about the visa applicant’s behaviour in Ghana together with the review applicant’s evidence of concern for the safety of the visa applicant (e.g. the eye injury), it seems extraordinary that the review applicant would not prefer to have the visa applicant under his direct supervision and care in Australia, albeit with his knowledge of behavioural problems of young African males in Perth.

53. The Tribunal also notes that the visa applicant lived with Esther, from the age of 3 years old to 21 years old, a period of 18 years. During this period, Esther lived with and cared for the visa applicant, from the time that he was a small infant until the age of 21 years, when she went to live with her spouse. She was by all accounts responsible for all of the day-to-day care and raising of the visa applicant, which included his domestic and everyday living requirements as well as being responsible for his attendance at school and general care and supervision of his behaviour.

1. Whilst the Tribunal accepts that the evidence provided by the review applicant verifies his evidence that there were significant problems with African youth crime in Perth in the years described, the Tribunal finds it unfathomable that the review applicant would wait almost 7 years before making an application on behalf of his adopted child, if the relationship between them was “significantly closer than any such relationship” between the visa applicant and any other person, for example, Esther.

2. Having carefully considered all the evidence, the Tribunal finds that there is no evidence before it to suggest that the relationship between the review applicant and the visa applicant was significantly closer than the relationship between the visa applicant and Esther. The Tribunal has particular regard to the nature of her care and the duration of that care between the ages of three years old to 21 years old, as well as the significant delay, of almost 7 years, between the adoption order being granted and the application being made. This delay and the reasons for it  given by the review applicant, cause the Tribunal to doubt the closeness of the relationship between the review applicant in the visa applicant.

3. The Tribunal notes that the review applicant provided financial support to the visa applicant and carried out the adoption process. Further, the Tribunal notes that the review applicant continues to send money to Esther for the visa applicant’s benefit. He has also been sending money directly to the visa applicant because of transaction taxes imposed by the government in Ghana and the distance from his university to Esther’s residence.

4. The Tribunal also raised with the review applicant the issue of formal adoption being “not reasonably practicable”. His response was that it takes too long, there is more cost involved and that it is “a bit cumbersome”. He stated he would have to travel to Ghana on more occasions under the formal process and that he may have been at risk of losing his job. He also had a mortgage on a property in Australia. He stated that the formal process would take up to 2 years to finalise. The review applicant stated that the customary adoption process was the most convenient for him.

5. Therefore, the evidence of the review applicant is that formal adoption, made in accordance with the law of Ghana, was available at the time of the adoption process and that he was fully aware of this fact. The review applicant was provided with alternatives in the adoption process and made a choice based on personal convenience.

6. In summary, having carefully considered all the evidence, the Tribunal finds that there is no evidence before it to suggest that the relationship between the review applicant and the visa applicant was significantly closer than the relationship between the visa applicant and any other person, in particular Esther. Further, the Tribunal finds that formal adoption was available in Ghana at the relevant time, that the review applicant was aware of this, that he was provided with alternatives in the adoption process and made a choice based on personal convenience. Further, the Tribunal finds that there is no evidence to suggest that formal adoption process was not reasonably practicable in the circumstances.

7. In view of the above, the Tribunal finds that the visa applicant does not meet either reg 1.04(2)(b) or (c).

8. Based on all the evidence before it, the Tribunal subsequently finds the visa applicant does not meet reg 1.04(1)(c).

9. Accordingly, cl 101.211(1)(c) is not met at the time of application and does not continue to be met the time of decision.

10. For the reasons above, the criteria in cl 101.211 are not met.

11. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

12. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Edward Howard
    Member